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Judge Explains Letting a Reporter Protect His Source

By Charlie Savage August 3, 2011 6:09 pmAugust 3, 2011 6:09 pm

A federal court on Wednesday unsealed a judge’s opinion from last week explaining why she had issued an order on July 29 largely quashing a subpoena to the writer of a book on the Central Intelligence Agency. The ruling protected the writer –- James Risen, who is also a reporter for The New York Times –- from testifying in the trial of a former C.I.A. official who is accused of leaking information to Mr. Risen about the agency’s effort to sabotage Iranian nuclear research a decade ago.

“A criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook,” wrote the judge, Leonie Brinkema of the United State District Court in Alexandria, Va..

The judge wrote that Mr. Risen was protected by a limited “reporter’s privilege” under the First Amendment, meaning that prosecutors had to prove that there was a compelling need for the reporter’s testimony and there that were no other means of obtaining the equivalent of that testimony. The government argued that such a privilege did not exist, but she recounted numerous other cases -– though none as high profile as the C.I.A. leak case -– in which other federal judges had invoked it.

Recounting the publicly known evidence against the former official, Jeffrey Sterling, Judge Brinkema noted that prosecutors had not argued that Mr. Risen’s testimony was so crucial to the case that it would fall apart without it. She also argued that they could use other means to show links between the two men, including records of phone and e-mail conversations. She also said that testimony from someone whom Mr. Risen might have told about his source while reporting would not be barred from testifying, under an exception to the hearsay rule.

The Justice Department has not said whether it will appeal the judge’s ruling, under which Mr. Risen would have to testify only that he wrote an article about Mr. Sterling, as well as a chapter about the program for his 2006 book, “State of War,” and that what he said about his sources in those publications was accurate.

Correction: August 4, 2011An earlier version of this blog post gave an incorrect date for Leonie Brinkema's order. It was July 29, not July 20.